Tag Archives: clemency

The President Grants Clemency, Leaves Fox in Henhouse – Update for April 28, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIDEN GRANTS CLEMENCY TO 75 PRISONERS

obtaining-clemencyPresident Biden’s announcement of three pardons and 75 commutations last Tuesday receive the expected accolades from the media, which generally like anything Biden does and – in this case – were undoubtedly relieved that no one on the list appeared to be a friend of Joe, a friend of a friend of Joe, or a favored cause of some celebrity who had booked private time with Joe.

The press, if not the public, is still suffering from a little PTSD (“Post-Trump Stress Disorder”). It is somewhat of a relief to see clemency not being used as a political carrot or to be scoring cheap political points.

USA Today said, “The individuals granted clemency came at the recommendation of the Department of Justice’s pardon attorney, according to senior Biden administration officials who briefed reporters about the announcement. It marks a return of a practice that was largely bypassed by former President Donald Trump, whose clemency requests often came through close aides.”

A return to normalcy? Maybe. Not a political act? “Not so fast!” Lee Corso might say.

Filter magazine reported that “Biden’s move appears to be the result of lobbying from a celebrity-connected network of clemency activists, such as Weldon Angelos, a former cannabis prisoner who counts Snoop Dogg among his friends. It carries over a troubling Trump trend for this unique and in practice, arbitrary, presidential power: People with celebrity backing are more likely to receive mercy, while others who are similarly situated don’t.”

clemency170206Recall that the White House said last year that Biden was reforming clemency, and would start granting pardons and commutations in the fall of 2022. So what happened? As CNN explained, President Joe Biden decided to mark “Second Chance Month” by “commuting the sentences of 75 people serving time for nonviolent drug offenses, issuing full pardons for three individuals who the administration says have worked toward rehabilitation and unveiling new actions aimed at easing the transition back to normal life for the formerly incarcerated.” The New York Times said, “Mr. Biden’s top aides described the use of presidential power as part of a broader strategy to overhaul the criminal justice system by relying less on prison to punish nonviolent drug offenders and using employment programs to help prevent the formerly incarcerated from returning to prison.”

I agree with Ohio State University law professor Doug Berman, who said in his Sentencing Law and Policy blog that “though I am still a bit salty that it took Prez Biden 15+ months in office before using his clemency pen, I am pleasantly surprised to see a large number of grants and many commutations to persons serving lengthy terms for drug offenses.” Prof Berman noted what I too thought was an anomaly: 40% of the commutation recipients were female. Only about 7% of the BOP inmate population are women.

Other interesting numbers: While the clemencies were widely seen as addressing marijuana convictions, this was not the case at all. Only 7% of the commutations were for a marijuana-only offense, and 12% for offenses that included marijuana. However, 40% of the commutations were for offenses involving methamphetamines, 28% involved cocaine powder, 12% involved crack, and 5% involved heroin. The meth number is especially interesting, in that Congress has shown not just uninterest, but outright hostility to meth offenses. (In the First Step Act, for example, methamphetamines, and heroin are singled out for exemption from eligibility for earned time credits under some circumstances).

Notably, no one who got a commutation had any fentanyl on his or her case.

While Biden noted that “many” of the people receiving commutations “have been serving on home confinement during the COVID-pandemic,” two inmates serving life and one whose life sentence was cut to 240 months in 2014 were among the commutation grants.

Still, this appears to be a nice start. Seventy-five of the 18,000+ clemency petitions on file have been granted. The White House has hinted that more is to come. So why am I complaining?

same160613It’s just this: The New York Times reported that “Mr. Biden based his decisions on clemency petitions sent to the Justice Department, which then made recommendations to the president, according to the White House.” On the campaign trail, Biden promised sweeping changes to criminal justice, including clemency. Previously, we had seen promising signs that Biden was going to cut the Dept of Justice out of the clemency process. DOJ prosecuted and locked up the prisoners to begin with. Having DOJ serve as the gatekeeper for clemency – an act of political grace, not a legal process – is akin to putting the fox in charge of selecting chickens to be released from the henhouse.

Now, about a year after Biden promised a review and possible restructuring of the clemency process, we’re back to the same-old-same-old. I’m not disappointed for the 75 who got clemency… just the 18,000 left behind.

White House, Clemency Recipient List (April 26, 2022)

USA Today, Biden pardons three felons, commutes sentences of 75 others, in first use of clemency powers (April 26, 2022)

CNN, Biden will commute or pardon sentences of 78 non-violent people. Here are a few to know (April 26, 2022)

The New York Times, Biden Uses Clemency Powers for the First Time (April 26, 2022)

Sentencing Law and Policy, Prez Biden finally uses his clemency pen to grant three pardons and 75 commutations (April 26, 2022)

Marijuana Moment, Biden’s first act of cannabis clemency (April 27, 2022)

Filter, Biden’s Clemency Announcement Falls Far Short (April 27, 2022)

– Thomas L. Root

Biden Makes Former Public Defender DOJ Pardon Attorney – Update for April 18, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NEW BLOOD IN THE PARDON OFFICE

clemency220418It only took him 15 months, but President Joe Biden has taken baby steps on addressing clemency by appointing a new Dept of Justice Pardon Attorney. Elizabeth G. Oyer, the first permanent Pardon Attorney in six years (everyone else was “acting” without official appointment), formerly served as Senior Litigation Counsel to the Office of the Federal Public Defender for Maryland.

Oyer, a Harvard law graduate, has “represented indigent defendants at all stages of proceedings in federal district court [and] handled a wide variety of criminal cases, ranging from complex fraud to drug and gun offenses, as well as violent crimes,” law prof Mark Osler, a national expert in clemency law, said last week on Twitter.

“It means something that Prez Biden has actually filled this slot,” Ohio State University law prof Doug Berman said last week in his Sentencing Law and Policy blog. “It’s also significant – and positive – that he has given a career defender an important job in the Department of Justice.”

Don’t expect miracles, however. Osler warns that the problem of the 18,000-petition backlog “may not have been the Pardon Attorney, but the bureaucracy that takes up the petitions after they are evaluated by the pardon attorney,” referring to review by the Attorney General and White House. There are over 18,000 pending petitions, many of them now years old (including unresolved petitions from the Obama administration). “It’s a mess,” Osler wrote. “We just know what kind of mess, or where the mess is located. The whole thing needs reform.

chickens160208In last week’s blog, Berman argued again that the federal clemency process should be removed from DOJ, noting the FIX Clemency Act (H.R. 6234), introduced four months ago, that would set up an independent clemency authority to review applications. GovTrack, a website that tracks legislation, gives the bill a 2% chance of passing.

Berman warns that “a full 15 months into his administration, Prez Biden has not granted a single pardon and has not granted a single commutation. With more than 18,000 applications pending, not to mention many low-risk, COVID-vulnerable persons released to [CARES Act] home confinement, it ought not be that hard to find at least a handful of “non-violent and drug” offenders who deserving of clemency… Whomever is in charge of the matters at DOJ, where these is a clemency will there is surely a clemency way. As of now, though, it does not appear that Prez Biden really has much of a clemency will.”

Twitter, Biden Administration has appointed a Pardon Attorney (April 14, 2022)

Sentencing Law and Policy, Justice Department has new Pardon Attorney who is a former public defender … which means …? (April 15, 2022)

DOJ, Meet the Pardon Attorney (April 12, 2022)

H.R. 6234, FIX Clemency Act

– Thomas L. Root

Clemency: No One Here But Us Turkeys – Update for December 13, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CLEMENCY CRITICISM RISES AS CHRISTMAS APPROACHES

Business Insider noted last week that “at this point in his presidency, Joe Biden has pardoned just two sentient beings: Peanut Butter and Jelly, 40-pound turkeys from Jasper, Indiana.”

turkey211122Not that prior presidents have done much better. Trump, by contrast, had pardoned three at this point in his presidency: two turkeys and one former sheriff. Clinton, Obama, and George W. Bush all waited until at least their second year in office before granting clemency to a human being.

That’s not because Biden can’t find candidates. About 17,000 petitions are pending, 2,000 of which have been filed in the past year.

Last week, Kevin Ring of FAMM, Sakira Cook of the Leadership Conference on Civil and Human Rights, and others met with White House staff to turn up the pressure. The meeting appears to have been frustrating for Ring. During an NPR roundtable last week on criminal justice reform, he noted that Biden has thus far even resisted clemency for CARES Act detainees. “To me, it’s a bellwether,” Ring said. “Because if the administration won’t address this and address it immediately, I don’t know what hope we can have that other things are going to get done.”

NPR noted that the BOP population has increased by about 5,000 since Biden took office.

Progressives in the House of Representatives, unhappy with a clemency system they say is too slow and deferential to prosecutors, last week proposed the creation of an independent panel they hope would depoliticize and expedite pardons.

clemency170206The “FIX Clemency Act,” HR 6234, was introduced last Friday by Rep. Cori Bush (D-Missouri), Vice Chair of the House Judiciary Subcommittee on Crime, Rep. Ayanna Pressley (D-Mass), and Rep. Hakeem Jeffries (D-NY). The bill calls for a nine-person board that would be responsible for reviewing petitions for clemency and issuing recommendations directly to the president. The recommendations would also be made public in an annual report to Congress. At least one member of the panel would be someone who was previously incarcerated.

That might work… if you could convince the President to appoint anyone to it. Last week, Law360 went after Biden for having yet to nominate anyone to the U.S. Sentencing Commission, which is “keeping a potentially key player in justice reform on the sidelines, according to legal experts.”

The article points out that the USSC “hasn’t had a full roster of seven commissioners for nearly half a decade and has lacked the minimum four commissioners needed to pass amendments to its advisory federal sentencing guidelines since the beginning of 2019.” As a result, an agency whose job is to evaluate the criminal justice system’s operations and potentially drive reform has been taken off the field, Law 360 quoted Ohio State University law professor and sentencing expert Doug Berman as saying.

noquorum191016The USSC currently has only one voting member, Senior U.S. District Judge Charles Breyer, who will have to leave next October, regardless of whether anyone has been named to the Commission or not.

During another NPR roundtable last week, NPR reporter Asma Khalid said of criminal justice reform, “You know, I cover the White House. And I will say, I don’t see this as really being an issue at the forefront, at least not from what I’ve heard publicly from them.”

The leadership vacuum is perhaps best reflected in rudderless Congressional action. Last September, the House of Representatives attached the Secure and Fair Enforcement (SAFE) Banking Act to its version of the National Defense Authorization Act. The SAFE Act would shield national banks from federal criminal prosecution when working with state-licensed marijuana businesses, and was widely seen as opening the door to marijuana reform. Last Tuesday, the final NDAA bill text was released without SAFE Banking Act language.

Many would say Biden has not enjoyed a legislative honeymoon, even while owning both houses of Congress. Maybe it’s only a legislative cease-fire, but whatever it is, the 11-month armistice is unlikely to hold for more than another year until Republicans retake at least one chamber. And with Americans’ perception that crime in their local area is getting worse surging over the past year, there will be less interest in criminal justice reform as the mid-terms approach.

Business Insider, Despite promises, Biden has yet to issue a single pardon, leaving reformers depressed and thousands incarcerated (December 8, 2021)

NPR, Criminal justice advocates are pressing the Biden administration for more action (December 9, 2021)

HR 6234, FIX Clemency Act (December 9, 2021)

Press Release, Bush, Pressley, Jeffries Unveil FIX Clemency Act (December 10, 2021)

Law360.com, Biden’s Inaction Keeps Justice Reform Group Sidelined (December 5, 2021)

NPR, No One Has Been Granted Clemency During Biden Administration (December 9, 2021)

Cannabis Wire, SAFE Banking Scrapped from NDAA Despite Major Push (December 8, 2021)

Gallup poll, Local Crime Deemed Worse This Year by Americans (November 10, 2021)

– Thomas L. Root

Biden Pardons Turkeys But No Prisoners – Update for November 22, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIDEN ISSUES FIRST PARDONS… NO HUMANS MAKE THE LIST

turkey211122There was no shortage of complaints from criminal justice reform advocates last Friday as President Biden “pardoned” two turkeys with the rather vegan names of “Peanut Butter” and “Jelly” in a White House ceremony.

“Peanut Butter and Jelly were selected based on their temperament, appearance, and, I suspect, vaccination status,” Biden said. “Yes, instead of getting basted, these two turkeys are getting boosted.”

But when a reporter asked whether he would be pardoning “any people in addition to turkeys,” Biden treated the question as a joke. “You need a pardon?” the president quipped. He didn’t reply to a follow-up question about marijuana prisoners as he walked away from assembled journalists.

turkeyb161123The turkeys may not get roasted, but the President isn’t so lucky. Law professor and clemency expert Mark Osler wrote in the Minneapolis Star-Tribune that “those of us who work in the field of clemency are left with a bitter taste in our mouths. Biden’s pardon of those turkeys represents the first time he has shown any interest at all in clemency. The problem isn’t just that Biden isn’t granting any clemency, it’s that he isn’t denying any, either. Following the lead of his predecessor, former President Donald Trump, Biden is just letting requests sit.”

Osler cited the 18,000 pending clemency petitions – 16,000 more than when Obama took office – and the danger CARES Act people may be sent back to prison when the pandemic ends, as “two genuine crises unfolding in federal clemency.”

A few days earlier, Interrogating Justice complained that

President Joe Biden campaigned heavily on justice reform, including with the federal Bureau of Prisons. He acted swiftly after his inauguration by terminating private prisons that housed federal inmates. However, since then, there has been virtually nothing. Various justice-reform groups have called out the president for his apparent lack of action. Points of frustration start with the increased population of federal prisons, the BOP’s inept handling of the pandemic, the failure to apply First Step Act time credits and most recently the question of granting clemency to all prisoners who are at home confinement under the CARES Act. And these are just a few of the many issues that plague the BOP.

turkeyprison161114The Minneapolis Post argued that “

While campaigning for president last year, however, Biden promised sweeping changes to the criminal justice system. And Biden could not have been more clear that he was committed to reform — promising, “as president” to “strengthen America’s commitment to justice and reform our criminal justice system. Then Biden got elected. And he’s been busy with other things…”

The Hill called it Biden’s “do-nothing” approach to clemency, which

he seems to have delegated entirely to the DOJ… Most of the Democratic candidates for president endorsed this change because the DOJ had proven itself incapable of handling clemency impartially and efficiently for decades… So why doesn’t Biden take clemency away from DOJ and create the kind of advisory commission that President Ford used to aid him in processing a similar backlog of petitions from people with convictions for draft evasion during the Vietnam War? The only apparent answer is that Biden does not want to look like he is interfering with DOJ. But clemency should never have been in DOJ in the first place. It is there by historical accident — no state gives clemency decision-making power to the same prosecutors who bring cases in the first place because of the obvious conflict of interest problem it poses.

New York Times, Boosted, Not Basted: Biden Pardons 2 Turkeys in Thanksgiving Tradition (November 19, 2021)

New York Post, Biden laughs off question about clemency for humans before pardoning turkeys (November 19, 2021)

Minneapolis Star-Tribune, When it Comes to Human Pardons, Thanks for Nothing (November 19, 2021)

Interrogating Justice, The Biden Administration Has Gone Quiet on Justice Reform at the BOP (November 15, 2021)

Minneapolis Post, When will Biden make good on his promise to reform criminal justice? (November 15, 2021)

The Hill, Biden can’t let Trump’s DOJ legacy stifle reform (November 17, 2021)

 Thomas L. Root

POTUS Pot Pardons Possible, CRS Says – Update for November 9, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COULD BIDEN USE BLANKET CLEMENCY ON POT OFFENDERS?

A Congressional Research Service report issued last week concluded that if President Joe Biden’s easiest path to fulfilling his goal of getting the federal government out of marijuana regulation business is to use his clemency power.

marijuana160818While the study concluded that Biden could not lawfully deschedule marijuana as a controlled substance, it nevertheless said the President has substantial control over how the law is enforced and may use his clemency authority at any time “after an offense is committed: before the pardon recipient is charged with a crime, after a charge but prior to conviction, or following conviction. The power is not limited to pardons for individual offenders: the President may also issue a general amnesty to a class of people.”

In addition, the Report notes, “the President could direct the Department of Justice to exercise its discretion not to prosecute some or all marijuana-related offenses. Although DOJ generally enjoys significant independence, particularly with respect to its handling of specific cases, the President has the authority to direct DOJ as part of his constitutional duty to ‘take Care that the Laws be faithfully executed’.”

The CRS is Congress’s public policy research institute, working primarily for members of Congress and their committees and staff on a nonpartisan basis.

Meanwhile, an article in Inquest last week observed that “there is deeply rooted legal precedent for presidents to use their authority to grant clemency to large classes of people. Presidents have deployed this authority to advance the public welfare, whether following a war or in response to unjust punishments, or simply to help heal a nation torn by crisis… Broad clemency has been issued by presidents George Washington, John Adams, James Madison, Abraham Lincoln, Theodore and Franklin Delano Roosevelt, Harry Truman, Lyndon B. Johnson, Gerald Ford, and Jimmy Carter.”

A lot of people are hoping to see this on the news...
A lot of people are hoping to see this on the news…

Noting that “the federal system… is the single largest incarcerator in the nation,” the article argued “ President Biden can lead by example, embracing categorical clemency as a tool to mitigate the system’s structural injustices… The president can act by issuing categorical clemency through a proclamation to a class of people based on two categories of eligibility: Personal characteristics or membership in a certain group, or shared circumstances. Such a proclamation should contain a presumption that all people who fit the criteria announced by the president will have their sentences commuted unless the DOJ can prove an articulable and current threat of violent harm.”

Of course, all of the foregoing supposes the President will use his clemency power at all. The Administration has thus far said not to expect pardons or commutations prior to late next year.

Congressional Research Service, Does the President Have the Power to Legalize Marijuana? (November 4, 2021)

Inquest, Mass Clemency (November 2, 2021)

– Thomas L. Root

Clemency Should Be ‘Easy Lift’ For Biden, Some Say – Update for October 1, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIDEN CARES ACT CLEMENCY CALLED INADEQUATE

We know a little more about the Biden Administration’s plan to solicit commutation applications from some CARES Act prisoners on home confinement, and as more is known, the criticism is mounting.

clemencypitch180716A few weeks ago, the Department of Justice started sending out commutation applications to about 1,000 people (about one out of four those on CARES Act home confinement). Biden is targeting people who have been convicted of a drug offense and have four years or less remaining on their sentences, directing them to apply to DOJ’s Office of the Pardon Attorney.

Last week, The New Republic observed that “Biden is wedded to an inefficient process that’s created a backlog of close to 16,000 petitions. The administration is going out of its way to frame its approach as the opposite of Trump’s chaotic one, which bypassed the Justice Department and freed people seemingly based on the president’s whims.” The New York Times reported last spring that Biden intends to “rely on the rigorous application vetting process,” as opposed to Trump’s approach, “empowering friends, associates and lobbyists to use their connections to the president, his family and his team to push favored requests to the front of the line…”

clemencybacklog190904

But the need to rely on the DOJ pardon system doesn’t sit well with some. Last week, Amy Povah, founder of the Can-Do Clemency Project, told Forbes, “President Biden has been handed an easy political gift. There are 4,000 inmates functioning in society, obeying the laws, bonding with family and held accountable for their past actions. There is no better group vetted to be given clemency than this group of CARES Act inmates… If those at home under CARES Act don’t all qualify to stay there, I’m concerned that we’re dealing with an overly conservative mindset, not consistent with the will of those who voted for President Biden.”

“This should be an easy lift for the Biden administration,” law professor Mark Osler, a former Assistant U.S. Attorney, told The New Republic. “They were handed a carefully vetted group of people who even Attorney General Barr thought should be out in society.”

Osler said the system Biden wants to rely on doesn’t work. “The fact that their commitment to a broken process is going to undermine this is really disappointing,” Osler told TNR. He has long argued that clemency cases should be taken away from DOJ. Before a case makes it to the President, Osler said, “the first thing the pardon attorney’s staff do is seek out the opinion of the local prosecutor and then give that opinion substantial weight. What do you think is going to happen?”

clemency170206No one is saying whether special considerations will be applied to CARES Act home confinees, allowing them to skip DOJ Pardon Attorney review and that office’s embarrassing backlog of cases. FAMM president Kevin Ring complained last week that outside of what they’ve seen in the media, no one knows what Biden plans. “It’s a crazy lack of transparency,” Ring said. “Friday afternoon, there’s a phone call to BOP halfway houses saying, this person should fill out a clemency petition in the next couple of days. Who? Why? What [are] the criteria?”

Unsurprisingly, the pressure remain high for Biden to do more. A week ago, five members of the Maryland congressional delegation wrote to Attorney General Merrick Garland and BOP Director Michael Carvajal, asking for reconsideration of the Trump-era legal opinion (which the Biden DOJ has agreed with) that CARES Act people have to return to prison after the COVID-19 emergency passes. And last Friday, three national law enforcement organizations – the Law Enforcement Leaders to Reduce Crime & Incarceration, Law Enforcement Action Partnership, and Fair and Just Prosecution — wrote to the President to urge him “to use your clemency power to ensure that all people successfully placed on home confinement under the CARES Act do not return to full custody.”

While all of the attention seems to be on CARES Act people, any focus on a re-do of the DOJ pardon system will ultimately benefit prisoners whether still in prison or at home.

Forbes, Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19 (September 19, 2021)

The New Republic, Biden’s Conservative Vision on Clemency (September  21, 2021)

Maryland Congressional Delegation, Letter to Attorney General (September 17, 2021)

Law Enforcement Action Partnership, Letter to President Biden (September 24, 2021)

– Thomas L. Root

Clemency Tips – Update for September 23, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

YOU’RE STILL LOCKED UP – SHOULD YOU FILE FOR CLEMENCY?

writing160425On Monday, I wrote about the Biden clemency initiative. And I have gotten questions about it, principally this one: What should you do if you’re not in the cohort of 1,000 people on CARES Act home confinement that Joe purportedly has asked to submit a clemency request?

Write one anyway. Like the lottery people say, you can’t win if you don’t buy a ticket. The commutation forms and instructions are available online. You probably should get your application in the hopper anyway, doing your best to show that you’re non-violent, show rehabilitation during your incarceration, and explain why your situation is similar to the 1,000 prisoners invited to file or otherwise praiseworthy.

Some pointers:

A commutation petition is not the time to say this...
A commutation petition is not the time to say this…

(1) No one cares about your innocence: Explaining that you’re actually innocent or that you were convicted by bad lawyering, corrupt courts, or cheating prosecutors is a bad idea. No one in the Administration wants to hear that, even if it happens to be so. The commutation process wants to hear about your remorse and rehabilitation, not about how you may have been done wrong. Clemency is an act of executive grace, completely discretionary and utterly unreviewable. Imagine that you have a gun with only one bullet. This shot absolutely has to count. Whining about your judge or lawyer fires your one bullet right into your foot.

(2) Truth counts:  Maybe the “gun with one bullet” analogy isn’t such a good one. You want to demonstrate that Gandhi has nothing on you when it comes to non-violence, but don’t sugar-coat things. If you were a hot-blooded young gun in your past, admit that and explain how you’ve aged out of it, found a spiritual path, whatever. But be truthful about your history. Glossing over prior conduct figuring that no one in Washington will examine your past in too much detail is not a winning strategy. Betting on the other side being lazy or incompetent is no plan.

(3) Reach for the possible, not the ideal. You want a pardon. Of course you do. Everyone would love to have his or her federal crime wiped off the books. But, if history is a guide, pardons are for celebrities – political or otherwise – or, if you’re a little guy, for people with decades-old offenses and a history since conviction that should make them Time’s Person of the Year. You want a pardon, sure. But that ain’t gonna happen. File for a commutation, which does not forgive your crime, but says that you’ve been punished enough and should have the rest of your sentence commuted.

So how should you write your petition? Attorney Brandon Sample has posted tips on writing clemency petitions at clemency.com. (Brandon’s site contains a lot of good information, and invites you to contact him – which is not to say that hiring Brandon or another attorney who knows the process is a bad idea: it’s a very good idea, especially if you have a decent shot at getting some traction from the Biden initiative).  

Speaking of lawyers, Margaret Colgate Love – who was U.S. Pardon Attorney during the George H.W. Bush and Bill Clinton administrations – has written a lot on clemency and is available for hire as well.

There are other effective legal advocates out there, too. I have just mentioned two whose work for which I have respect.

obtaining-clemencyWhile not attorneys for hire, the people at Amy Povah’s Can-Do Foundation – focused on clemency for non-violent drug offenders –have posted some tips on applying for clemency or (and this is important) getting friends or family to write in support. Some of Can-Do’s information is a little dated, having been written during the Wild West days of Trump clemency, but there are nuggets of good advice on the website.

Finally, while its focus is slightly different (or perhaps larger than just clemency), Attorney Brittany Barnett’s Buried Alive project has worked on some high-profile commutation as part of its work on drug life-without-parole sentences. Alice Marie Johnson, one of President Trump’s most deserving commutations (and later, pardons), was represented by Barnett.

Dept. of Justice Pardon Attorney website

Brandon Sample, Clemency Resources

Margaret Colgate Love, Clemency Resources

Can-Do Foundation, Clemency Resources

Buried Alive Project

– Thomas L. Root

Biden Proposes Clemency Lite – Update for September 20, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ADMINISTRATION TROTS OUT COMMUTATION PLAN THAT IS OPAQUE AND TINY

clemencypitch180716President Biden’s administration last week announced something that looks like a clemency plan, only much smaller. Last Monday, White House spokesman Andrew Bates said the Administration “will start the clemency process with a review of non-violent drug offenders on CARES Act home confinement with four years or less to serve.”

Those who have been invited to apply fall into a specific category: drug offenders released to CARES Act home confinement who have four years or less on their sentences. Neither the White House nor the Dept of Justice would say how many people have been asked to submit commutation applications or whether it would be expanding the universe of prisoners who would be considered.

However, according to news reports, about 1,000 home confinees – about 25% of the people on CARES Act home confinement – are included in the batch the White House wants to review. Weldon Angelos, who was pardoned for a marijuana conviction by President Donald Trump last year and works with the current administration on criminal justice reform, told Marijuana Moment that about 1,000 people were asked to report to their designated halfway houses to fill out the clemency form in recent days.

Udi Ofer, the ACLU’s deputy national political director, said he was troubled by the possibility that the White House was cleaving off CARES Act recipients into those deserving commutation and those who didn’t, arguing that the Bureau of Prisons, in originally releasing inmates under the CARES Act, had already made a determination between those who posed a threat of violence and those who didn’t.

clemency170206“We are worried that the White House is viewing this issue too narrowly and unnecessarily restricting the category of people being asked to apply for clemency,” Ofer told Politico.

Others disagree that then BOP’s decisions on home confinement – which have largely been delegated to 122-odd executive officers at BOP facilities – are a consistent or reliable indicator of who should get clemency. “It’s not clear how the Bureau of Prisons chose people for this home confinement program, which raises the question of whether it’s fair to give a special benefit to these folks not available to those who have filed clemency petitions sometimes years ago and have been patiently waiting,” said former DOJ Pardon Attorney Margaret Love.

Biden’s limited clemency plan appears not to be enough for some lawmakers. Last Friday, 28 House Democrats called on Biden to commute the sentences of all 4,000 CARES Act home confinees, as well to establish a review board for pending clemency petitions.

“We urge you to use your authority as President to immediately commute the sentences of the 4,000 people who, under the [CARES Act], are currently on home confinement and at risk of being sent back to federal prison, and further, to create an independent clemency board to review the more than 15,000 pending clemency petitions,” the letter, spearheaded by Reps. Cori Bush (Missouri), Bonnie Watson Coleman (New Jersey), Pramila Jayapal (Washington), and David Trone (Maryland), said.

The President had announced in May that he would tackle clemency in 2022.

noplacelikehome200518A BOP spokesperson told The Hill last week that the agency is focused on the “expanded criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred… The BOP and the [Department of Health and Human Services] continue to explore all potential authorities that could be exercised after the end of the pandemic to help address this issue.”

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

CNN, Administration to start clemency process for some federal inmates on home confinement due to Covid conditions (September 13, 2021)

Marijuana Moment, Biden Administration Asks Prisoners with Certain Federal Drug Convictions to Apply for Clemency (September 13, 2021)

The Hill, Democrats urge Biden to commute sentences of 4K people on home confinement (September 17, 2021)

– Thomas L. Root

Biden Plans to Commute Some Drug Defendants, Vax BOP Staff – Update for September 14, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SO WHAT HAPPENS NOW?

The morning after President Biden announced an executive order that all federal employees would get the COVID vaccine, the Bureau of Prisons numbers were stubbornly high. The number of sick inmates was up 5% from a week ago, standing at 553 (the highest count since March 15). More ominously, the number of sick staff jumped 12% to 563, nearly equal to the number of sick inmates, and the highest since April 20. COVID is present at 112 of 122 institutions, and the death toll notched up to at least 267 inmates.

deadcovid210914What remains puzzling is the BOP’s testing. The agency said it tested 127 people last week, a very low number of tests for the number of inmate cases the BOP is reporting.

Meanwhile, the number of vaccinated inmates hit the 60% mark, while the staff percentage barely moved, from 53.39% to 53.62%.

The staff number should change. On Thursday, Biden signed an Executive Order that, among other things, “require[s] COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.” The exceptions are for medical and religious reasons only, and (I already received one email asking this) the Order does not exempt BOP employees. Biden ordered each Federal agency to implement a program to require COVID-19 vaccination for all Federal employees and directed the Safer Federal Workforce Task Force to issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.

The BOP announced two more COVID-19 deaths, one on September 4th at FCI Bennettsville and another from last November at FCI Talladega. The Talladega death was of a 29-year old who had contracted COVID on August 5, 2020, but who was declared “recovered” 12 days later.

At the 43-minute mark of last Friday morning’s White House press briefing, Press Secretary Jen Psaki had an exchange with an unidentified reporter:

Q: Jen, I’m hearing that the Bureau of Prisons issued a memo today telling approximately about 1,000 drug offenders how to apply for clemency. Have you — do you have anything on that?

MS. PSAKI: I would certainly point you to the Department of Justice. I would say that the President has been clear about his openness to using clemency powers, but I don’t — I wouldn’t say that’s an assessment of decisions made — and certainly targeting those toward nonviolent drug offenders. But I’d point you to the Department of Justice for any further details.

The riddle was solved yesterday when POLITICO reported that the Biden administration has begun asking people on CARES Act home confinement inmates to “formally submit commutation applications, criminal justice reform advocates and one inmate herself tell POLITICO.”

clemencyjack161229“Those who have been asked for the applications fall into a specific category,’ POLITICO reported, “drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences. Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset. But it did confirm that the president was beginning to take action.”

Business Insider published a piece on Saturday noting that “the Biden administration is considering granting commutations to those under home confinement who have federal drug charges and have less than four years left in their sentences. If enacted, that decision would only affect about 2,000 out of the 4,000 people currently under home confinement. To those that don’t fit the criteria, the administration will force them back to federal prison. For these individuals, the decision could be devastating to the progress they’ve made since emerging from behind bars. Sending [inmates] back to prison and hampering [their] progress would have the opposite effect of what our justice system purports to achieve.”

White House, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (September 9, 2021)

BOP, Inmate Death at FCI Talladega (September 10, 2021)

White House, Press Briefing by Press Secretary Jen Psaki (September 10, 2021)

Politico, Biden starts clemency process for inmates released due to Covid conditions (September 13, 2021)

Business Insider, Thousands of people who were released from prison due to the pandemic are now thriving with their families. But if Biden doesn’t act now, they will be cruelly sent back. (September 11, 2021)

– Thomas L. Root

President Said to be Considering CARES Act Partial Clemency – Update for September 7, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BIDEN MAY (FINALLY) BE TAKING BABY STEPS ON CLEMENCY

The New York Times reported last week that President Biden is considering using his clemency powers – which he has not exercised in his first seven months in office – to commute the sentences of nonviolent drug offenders with fewer than four years left to serve. The contemplated intervention would not apply to those now in home confinement with longer sentences left, or those who committed other types of crimes, Biden administration sources told the Times.

The notion of clemency for some inmates is just one of several ideas being examined in the executive branch and Congress, the Times said. Others include a broader use of 18 USC § 3582(c)(1)(A)(i) “compassionate release” or 34 USC § 60541, the elderly offender home detention program, or even a law – such as the Safer Detention Act (S.312) – to allow some inmates to stay in home confinement after the pandemic.

The CARES Act permits inmates who are sent to home confinement under Section 12003(b) to remain at home until the pandemic public health emergency ends. The Times says, “That will not be soon: With the Delta variant spurring a surge in cases, the public health emergency is not expected to end before next year at the earliest.”

clemencyjack161229On August 10, Biden Press Secretary Jen Psaki said Biden was “exploring multiple avenues to provide relief to nonviolent drug offenders, including through the use of his clemency power.” The Times reported officials have confirmed that the Justice Department “will soon begin requesting clemency petitions for drug offenders who have less than four years left on their sentence, which will then be reviewed by its pardon office.” The officials said a focus on nonviolent drug offenders “dovetail[s] with Mr. Biden’s area of comfort on matters of criminal justice reform.”

Whether Biden is leaning toward commuting the sentences of drug offenders to home confinement, reducing sentence length to bring them down to the normal window 10%-or-six-month window for 18 USC 3624(c)(2) end-of-sentence home confinement, or some mix of the two, is not yet clear.

The Times reported that DOJ is still studying options that could keep non-drug offenders from being forced back into prison.

Meanwhile, criminal justice reform groups are keeping up pressure on the President. FAMM and the American Civil Liberties Union are mounting a six-figure ad campaign to pressure Biden to keep the CARES Act prisoners at home. The TV ads feature Juan Rodriguez, a federal prisoner sent home in July after doing eight of 14 years for a drug conviction. “I’m going to try to make the best out of every day I have out here,” Mr. Rodriguez says in the ad featuring him with his family and working a new job. “President Biden, please don’t separate me from my family.”

angel210907The ACLU has argued that fewer than 1% of prisoners put on home confinement had violated the terms of their release, and it was time for Biden to follow through on lowering the incarceration rate and size of the federal prison population that he campaigned on as a presidential candidate. So far, only five people sent home during the pandemic have been returned to prison for new criminal conduct.

USA Today has reported that over two dozen small business owners who have CARES Act home confinees are also asking Biden to grant clemency to prisoners. Some say losing employees to prison during a national labor shortage would not only be detrimental to their businesses, but would also keep their companies from growing.

Ohio State law professor Doug Berman complained in his Sentencing Law and Policy blog that when Biden was campaigning, he promised to “’take bold action to reduce our prison population’. But the federal prison population… has grown by over 4000 persons according to BOP numbers, from 151,646 total inmates on January 21, 2021, to 155,730 total inmates on August 26, 2021. To date, I cannot really think of any actions (let alone bold ones) that Prez Biden has taken to reduce the federal prison population. Talk of some clemency action is heartening, but just a start. And whatever clemency efforts are made, they should extend beyond just a limited group who are already home.”

The New York Times, White House Weighs Clemency to Keep Some Drug Offenders Confined at Home (August 30, 2021)

Washington Times, ACLU pressures Biden to keep convicts on home confinement out of prison due to pandemic (August 27, 2021)

USA Today, Businesses that hired inmates who were allowed to serve time at home during COVID push for clemency (August 26, 2021)

CBS News, Inmates on home confinement could be sent back to prison after the pandemic: “Why make us go back and do it again?” (September 3, 2021)

Sentencing Law and Policy, Prez Biden reportedly considering, for home confinement cohort, clemency only for “nonviolent drug offenders with less than four years” left on sentence (August 30, 2021)

– Thomas L. Root